Skip to content

Get Judicial Watch Updates!

DONATE

Judicial Watch • Felarcacomplaint

Felarcacomplaint

Felarcacomplaint

Page 1: Felarcacomplaint

Category:

Number of Pages:42

Date Created:October 30, 2017

Date Uploaded to the Library:November 03, 2017

Tags:Felarcacomplaint, felarca, MLKMS, VERIFIED, mandate, Berkeley, petition, MEANS, Teachers, Plaintiffs, staff, ACLU, complaint, California, filed, document, Supreme Court, FOIA, school, district, ICE


File Scanned for Malware

Donate now to keep these documents public!


See Generated Text   ∨

Autogenerated text from PDF

Case 4:17-cv-06282 Document Filed 10/30/17 Page
RONALD CRUZ, State Bar No. 267038
SHANTA DRIVER, Michigan Bar No. P65007*
United for Equality and Affirmative Action Legal Defense Fund (UEAALDF)
1985 Linden Street
Oakland, 94607
(510) 875-4463 Fax: (313) 586-0089
ronald.cruz@ueaa.net, shanta.driver@ueaa.net
Attorneys for Plaintiffs/Petitioners
*Pro hac vice application pending
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT CALIFORNIA
YVETTE FELARCA, LORI NIXON,
LARRY STEFL,
Plaintiffs/Petitioners,
VERIFIED COMPLAINT AND PETITION
FOR WRIT MANDATE
vs.
BERKELEY UNIFIED SCHOOL
DISTRICT, DONALD EVANS, JANET
LEVENSON,
Defendants/Respondents.
_____________________________
JUDICIAL WATCH,
Real Party Interest.
_____________________________
CASE NO.:
California Public Records Act (Cal. Gov
Code 6250 seq.)
First Amendment U.S. Constitution
(Freedom Speech, Freedom
Association)
Fourth Amendment U.S. Constitution
(Privacy)
California Constitution Article 1-2
California Code Civil Procedure 382,
1085, 1086
Educational Employment Relations Act
(EERA) (Cal. Gov Code 3540 seq.)
California Labor Code 1101, 1102
CLASS ACTION
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
INTRODUCTION
member Lori Nixon, and teacher Larry Stefl who work Martin Luther King Middle
School MLKMS Berkeley Unified School District BUSD enjoin
Defendants BUSD, BUSD Superintendent Donald Evans, and MLKMS Principal Janet
Levenson from (1) directing MLKMS staff and faculty surrender all communications,
including electronic (e-mail) communications, that state the words Felarca, Antifa, All Means Necessary, and/or BAMN, BUSD, (2) mining email accounts
MLKMS staff and faculty for such documents and/or provide such documents Real
Party Interest Judicial Watch, and (3) giving Felarca confidential personnel file
Judicial Watch.
teachers and staff MLKMS.
these e-mails November 2017 give them Judicial Watch. For Plaintiffs who not
respond, Defendants will mine their emails for communications that meet the stated criteria and
This Verified Complaint and Petition brought teacher Yvette Felarca, staff
Plaintiffs Felarca, Nixon and Stefl seek class-representative status represent all
Immediate action necessary because Defendants have ordered Plaintiffs produce
release them Judicial Watch (EXHIBIT Levenson email).
Judicial Watch and BUSD seek put public display the emails teachers and
staff MLKMS, school community that has been defending Felarca and the city
Berkeley from right-wing attack. Defendant seeks conduct political witch-hunt,
violating Plaintiffs privacy and chill their freedom speech, freedom association,
and right engage protected activities and disrupts their public function educators.
Berkeley has found itself ground zero the fight against Donald Trump
policies anti-immigrant scapegoating and tendency toward creating authoritarian
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
regime. The people Berkeley, including Plaintiffs, have been the center opposing
the alt-right and neo-Nazi thugs who have repeatedly targeted Berkeley precisely because its principles anti-racism, tolerance and freedom speech. This case will have
tremendous impact the future course this struggle. national organizer with the Coalition Defend Affirmative Action, Integration and
Immigrant Rights and Fight for Equality Any Means Necessary (BAMN) who has
organized protests and done countless media interviews, has quickly gained broad
audience and recognition.
Berkeley leading role the anti-Trump movement has also meant that Felarca,
attempting remove her from her job Fall 2016 baseless, politically-motivated
charges.
dear this community and which have taken new, deeper, and more intimate
meaning given the history are living through. Injunctive relief for Plaintiffs would
make clear that the protections Privacy, Freedom Speech, Association, and Political
Freedom the underpinnings democracy are not mere phrases but living ideals
which this Court, California, and the United States subscribes.
staff MLKMS: they are fearful speaking out expressing opinions political
social issues, out school, for fear being next. (See attached Declarations
Plaintiffs Felarca, Nixon, and Stefl and Declarations and 7.) The atmosphere fear
and the awareness that communications can handed over hostile political
BUSD has been conducting political witch-hunt against Felarca, including
BUSD action violates the central constitutional protections that are held most
BUSD action has caused alarm and fear among Plaintiffs and other teachers and
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
organizations disrupts the school educational mission sowing fear and division
among teachers and staff, some whom are fearful communicating with Felarca
the course their duties due BUSD actions, and fearful speaking and associating ways that will met with political witch-hunt and attack. amount redacting
names, email addresses, etc. would protect individual Plaintiffs from the right-wing trolls
who have been determined identify MLKMS teachers and staff for harassment and
bullying well the entire school.
10.
employees about and/or make public their political affiliations, such whether they are
Democrats Republicans, where they stand ballot propositions, whether they are
members the ACLU, BAMN, Operation Rescue, any other political organization.
Allowing public employers ask employees provide and then publicize that kind
information chills and deters employees freedom speech and association for fear
employer surveillance public exposure, allows public employers pick and choose
which employees retain drive out based their political beliefs, and exposes
employees political witch-hunt and harassment for their beliefs.
11.
CPRA into something unrecognizable and far-removed from its original intent making
the acts government officials public. Instead, would become tool for employers and
political organizations spy and police public employees for their political beliefs
and affiliations, including concerted activities for their mutual benefit.
12.
privacy, and union right organize, Plaintiffs seek relief.
BUSD action sets dangerous precedent. Employers are barred from asking
BUSD pursuit Judicial Watch illegal CPRA request would transform the defend their fundamental rights freedom speech, freedom association,
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
THE PARTIES
13.
California. Felarca teacher and employee Martin Luther King Middle School MLKMS Berkeley Unified School District (BUSD). She nationally-prominent leader the Coalition Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality Any
Means Necessary (BAMN). She has served MLKMS elected site representative and
member the Berkeley Federation Teachers (BFT executive board.
14.
Plaintiff/Petitioner Yvette Felarca individual who employed Berkeley,
Plaintiff/Petitioner Lori Nixon individual who employed Berkeley, California.
Nixon employee MLKMS BUSD.
15.
Plaintiff/Petitioner Larry Stefl individual who employed Berkeley, California.
Nixon staff member and employee MLKMS BUSD.
16.
Defendant/Respondent Berkeley Unified School District BUSD Berkeley,
California. public entity and educational service agency established and maintained
the laws and constitution the State California.
17.
employment Berkeley, California. sued his official capacity.
18.
employment Berkeley, California. She sued her official capacity.
19.
Defendant/Respondent Donald Evans the superintendent BUSD. His place
Defendant/Respondent Janet Levenson the principal MLKMS. Her place
Real Party Interest Judicial Watch conservative organization located
Washington, DC. Judicial Watch invoked the California Public Records Act CPRA when
requesting that BUSD produce all BUSD administration and MLKMS faculty and staff
communications that mention Felarca, Antifa, All Means Necessary, and BAMN,
and when requesting Felarca confidential personnel file.
JURISDICTION AND VENUE
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
20.
Just the federal courts have recognized the implied right individuals whose
rights would violated federal government agency release records pursuant Freedom Information Act (FOIA) request initiate reverse-FOIA request
against the agency request injunctive relief protect their rights, the California courts
have recognized the right individuals whose rights would violated California
government agency release records pursuant CPRA request initiate reverse-
CPRA lawsuit request injunctive relief protect their rights. Marken Santa
Monica-Malibu Unified School Dist., 202 Cal.App.4th 1250, 1265 (Ct. App. 2012).
21.
This action brought pursuant to: U.S.C. 1983; the First and Fourth
Amendments the United States Constitution; the California Constitution; the California
Public Records Act (Cal. Gov Code 6250 seq.); and the California Educational
Employment Relations Act (EERA, Cal. Gov Code 3540 seq..
22.
and/or are Berkeley, California. The events, acts, and/or omissions complained
herein occurred Berkeley, California, and this action properly assigned the U.S.
District Court California, Northern District.
23.
1343(3). This Court has supplemental jurisdiction related state claims from the same
case controversy under USC 1367(a).
24.
Plaintiffs are employed Berkeley, California. All the Defendants are employed
This Court has subject matter jurisdiction under USC 1331 and USC
This action timely filed within all applicable statutes limitation.
INTRADISTRICT ASSIGNMENT
25.
County, making assignment the Oakland Division appropriate under Civil L.R. 3-2(d). substantial part the events which give rise this claim occurred Alameda
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
GENERAL FACTUAL ALLEGATIONS
26. qualify public record that must disclosed under the California Public
Record Act CPRA writing must contain information relating the conduct
the public business. Cal. Gov Code 6252(e). The California Supreme Court expands this definition: [T]o qualify public record under CPRA, minimum, writing
must relate some substantive way the conduct the publics business. This
standard, though broad, not elastic include every piece information the
public may find interesting. Communications that are primarily personal, containing
more than incidental mentions agency business, generally will not constitute public
records. City San Jose Superior Court, Cal.5th 608, 618 (Cal. 2017).
27.
which exempted prohibited pursuant federal state law. Cal. Gov Code
6254(k). Disclosure may not violate constitutional and statutory rights privacy,
freedom speech, freedom association, and engage protected activities.
28.
which would constitute unwarranted invasion personal privacy from disclosure.
6254(c).
29.
who have decision-making power the District. Ms. Felarca, who targeted the
request, has power set policy for the Berkeley Unified School District (BUSD).
30.
only middle school Berkeley with Newcomers program for recent immigrant
students. Felarca member the civil rights and immigrant rights organization, the
Further, the CPRA does not authorize the disclosure records, the disclosure
The CPRA exempts [p]ersonnel, medical, similar files, the disclosure
Felarca not public official. She and the other Plaintiffs are teachers and staff
Felarca teacher English Language Learners (ELL) MLKMS, which the
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
Coalition Defend Affirmative Action, Integration, and Immigrant Rights and Fight for
Equality Any Means Necessary (BAMN) and affiliated with the National Teachers
Caucus EON/BAMN (Equal Opportunity Now/By Any Means Necessary), which
members are aware and expectant the outcome this request (See Declaration
Mark Airgood). national organizer with BAMN, Felarca has organized and led
protests opposing Trump policies scapegoating immigrants, Muslims, and against
Trump alt-right and neo-Nazi supporters.
31.
and the city public school system have lived their progressive reputation and
Since Donald Trump was elected, the City Berkeley, the UC-Berkeley campus,
consistently warded off threats and attacks alt-right and immigrant-bashing
demagogues. Berkeley leading role the anti-Trump movement has also meant that
Felarca has quickly gained broad audience and recognition. Her numerous speeches and
interviews local, national, and international media outlets organizer and leader
BAMN have garnered international attention from Trump opponents and supporters. Her
political views are most closely aligned with the immigrant rights and Black Lives Matter
movements.
32.
nation, Felarca has become favorite target for the alt-right and Trump supporters. Her
organizing against neo-fascist and alt right marches Berkeley, well her stand
against the Trump policies increased ICE raids and arrests, have made her target
far-right Internet trolls. Her well-publicized fight keep her job Berkeley Unified
Schools and recoup pay that District Administration withdrew from her bank account
was supported the Berkeley Federation Teachers (BFT) through the Grievance her role BAMN leader and leading civil rights activist California and the
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
process. The case was resolved Felarca favor after investigation District
Administration.
33.
Federation Teachers (BFT) Presidency several occasions. She has repeatedly been
elected BFT delegate the American Federation Teachers (AFT) National
Convention and has been elected represent BFT the California Federation
Teachers (CFT) State Conference. She has represented numerous teachers grievance
procedures, and has been vocal advocate public education and against the
expansion charter schools Berkeley the BUSD Board Education meetings.
Felarca has been union representative for MLK and has run for the Berkeley
34.
For over year, teachers and staff the school have heroically united against the
abuse that Ms. Felarca and the rest the staff have suffered the hands alt-right, neo-
fascist, and violent Trump supporters.
35.
protesting and being stabbed neo-Nazis Sacramento. Within hours, troll campaign
attempted use cyber terrorism terrorize Ms. Felarca, teachers, staff, and students
the school. Despite this, teachers and staff stood strong and united together, refusing
cowed.
36.
taking action against Felarca, removing her from her classroom for weeks. Again, the
King teachers, staff, and community became even more active, speaking out rallies,
school board and community meetings successfully restore Ms. Felarca her
classroom. (See attached Declarations) the summer 2016, Ms. Felarca spoke CNN and other media about few weeks later September 2016, the District resurrected the witch-hunt
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
37. February 2017, after Felarca appeared Fox News debate host Tucker
Carlson the alt-right and fascism, insane trolls again bombarded Felarca and the
school with death threats via email and phone calls.
38.
members, and our staff whole were terrorized with death threats, stalked work
the community those who politically targeted our school and staff. Our staff received
counseling and individuals were forced take time off from work result the
immediate trauma these vile threats and harassment created. (Declaration Larry Stefl)
39. Plaintiff Stefl writes his Declaration: Last spring [2017], myself, other staff
The right-wing trolls goal was enlist support from other staff and
administration turn Ms. Felarca and force her abandon her students and the school
community. Again, King teachers and staff showed integrity and unity, overcoming that
divisive period, and healing the side each other, free speech, and anti-racist
activism.
40.
administration, the teachers, staff, and school community have ultimately stuck together,
supporting not only one their most politically active and outspoken teachers, but their
own right speak out against Trump racist scapegoating and behalf immigrants,
Muslim, black, and other students facing hardship. (Declaration Larry Stefl)
41.
and Real Party Interest, Judicial Watch, sent request Defendant BUSD requesting
that produce for public inspection Any and all records communications between
the BUSD Superintendent and any other BUSD officials and/or staff Martin Luther
Kind, Jr. [sic] Middle School mentioning Felarca Antifa All Means Necessary
Through repeated witch-hunts crazy right-wing trolls and the District September 2017, the Washington, D.C.-based conservative organization
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
and/or BAMN. Any and all records communications between and among
faculty/staff members Martin Luther King, Jr. Middle School mentioning Felarca
among faculty/staff members Martin Luther King, Jr. Middle School mentioning
Felarca, Antifa, All Means Necessary, and/or BAMN. The personnel file
Martin Luther King, Jr. Middle School teacher Yvette Felarca. The request claimed
authority for this request under the California Public Records Act CPRA
42.
attacking Sanctuary city policies, and are now targeting the school and teachers who
teach and publicly defend immigrant students inside and outside the school. Judicial
Judicial Watch right-wing, anti-immigrant organization with history
Watch has held weekly meetings its Washington, D.C. offices over the past year with
Breitbart News and other conservative, Pro-Trump, and Alt-Right politicians and
reporters coordinate messaging and plan campaign (named Groundswell
promote and publicize these political views.
43.
mail out all MLKMS teachers and staff directing them produce all emails that
mention Felarca, Antifa, All Means Necessary and/or BAMN BUSD
that they would given Judicial Watch. teachers and staff did not
November 2017, BUSD personnel would mine their emails and obtain all emails fitting
this criterion and give them Judicial Watch. (See EXHIBIT Levenson email)
44.
Principal Levenson announced meeting MLKMS teachers and staff the
District intention disclose their emails. Teachers and staff were angry and distraught:
one teacher cried the meeting and others cried after. (Felarca Declaration) The October 25, 2017, Defendant MLKMS Principal Janet Levenson sent October 25, 2017 staff meeting, Defendants Superintendent Evans and
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
District announcement already has fostered anger, fear, and demoralization MLKMS.
(See Declarations)
45.
letter, her Declaration Judicial Watchs right wing agenda and specific focus
Yvette Felarca suggests that they are using the PRA harass, silence, and bring down
employee and school community whose political views profoundly differ from their
own have lifetime experience Berkeley and never before have felt that
expressing views might place harm way. sorely disappointed that you
have not even tried protect and right communicate freely and comfortably
One teacher expressed her anger toward Defendant Superintendent Evans via
with fellow staff members. already feeling silenced! (Declaration
46.
business, but everything common with politically targeted witch-hunt. intended silence Felarca and prevent her from being one the most tireless and prominent
leaders the anti-Trump movement. The only purpose gaining access the emails
all teachers and staff smear, stigmatize, terrorize, and make example out
Felarca convince teachers and staff not take similar public actions against Trump
fascism for fear being the next one targeted.
47. court intervention, would chill the free speech and free association rights teachers
and staff, especially, but not limited to, Felarca. (See Declarations.) BUSD action
would threaten every teacher and staff member: they can and will targeted and
released specifically political terms. Other teachers and staff members who are
politically active associated with organizations with progressive politics will
The character Defendants directive has nothing common with the public
Judicial Watch request and BUSD determination carry out, the absence
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
targeted, and there will further chilling effect free speech, political freedoms,
union organizing and academic freedom.
48.
communications with colleagues hostile trolls would immediately and irreparably
damage ability communicate freely with colleagues, essential aspect
work and fundamental right. The fear mongering who next hanging over our
school harms our teachers and students, creating hostile work environment constant
fear and whispers. Successful teaching and learning requires environment safety
and trust, but that will immediately and irreparably lost the BUSD administration
serves the entire staff private communications organization that hostile
our staff and our entire mission school and community. (Declaration Stefl,
2c)
49.
curtailed the targeting Felarca and her activities outside work allowed
forward. The willingness coworkers and other union members associate with
Felarca, support her campaigns defense workers grievances and public education, campaign for her election campaign will sharply curtailed she
successfully targeted and the implicit message goes out that one should ostracize her and
treat her pariah one preserve one own safety from harassment and ultimately
safeguard one job the school.
50.
achieve the opposite openness. Felarca has been completely transparent about her
political views and has defended the right parents and students organize defense Plaintiff Stefl writes his attached Declaration: Handing over
Plaintiffs right engage concerted activity would grievously harmed and
Defendants illegal action under the pretext meeting CPRA request would
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page public education, Felarca herself, anti-racism, anti-sexism, and immigrant rights
public, the fora designated for such debate, such BUSD school board meetings. The
accountability the public schools and their leadership the citizens Berkeley has
been recurring theme with Felarca. Many the MLK teachers who are now being
asked reveal personal information have joined her speaking-out. just this
openness which Judicial Watch cynically seeks destroy, using CPRA method
target individual teachers and progressive political views for harassment.
51. acting unison with Judicial Watch abridge the fundamental rights the plaintiffs,
For BUSD carry through this invalid request without court test tantamount
all whom are employees BUSD.
52.
protected union activity chilled, but any action that was opposition the policies the Trump regime would effectively off-limits, because there protection
against explicitly political speech, there protection against the targeting
specific teacher, there protection against targeting civil rights leader then there certainly protection for any staff member, student, family member the District
should they attract the attention the alt-right and/or Trump supporters.
53.
fearful out concern for the safety newcomers immigrant students because this
request. (Declaration Felarca; Declarations and
54.
communicate, work together, and design the best their ability appropriate
educational program for students.
Not only would working with Felarca this any activity, including
Teachers and staff, especially the Newcomers student program, are already
For the MLK staff, release this information compromises their ability
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
55.
The District plan publicize Plaintiffs emails would have grave effect
teachers ability carry out the level specific and honest communication that
necessary for the maintenance high quality educational environment and functioning
school community. December 2016, after Muslim student wanted quit school due racist bullying, Felarca and another teacher the school planned and organized with
students rally outside the school before the first bell wall love and solidarity
support Muslim students and against racism and deportations. This the kind
action that teachers would have fear the targeting Felarca and explicitly political
and anti-racist action carried out through this CPRA demand.
56.
school community has been central project the Martin Luther King Jr. teaching staff
for many years. Once the degree and collegiality needed for this task destroyed would through the targeting Felarca and unavoidably her ELL students and
through the invasion privacy all MLK staff members cannot reinstated for
extended period time, ever. The school climate and educational conditions for
teachers, and students would irrevocably harmed.
57.
communicate, work together, and design the best their ability appropriate
educational program for students. compromises the ability Felarca the best
her students. (See Declarations) teacher cried the staff meeting the Administration
called announce their intent for teachers search their own emails.
58.
turn over any email communications with the words, Felarca, BAMN Antifa, and
The pursuit having high quality educational environment and functioning
For the MLK staff, release this information compromises their ability
One teacher MLKMS writes: the meeting the district staff asked that
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page All Means Necessary. Felarca obviously distraught was forced defend herself. see her this way both upset and unsettled me, making afraid speak freely and
openly work and ponder it, even outside work. Can outside activities
become fodder for the district (or others such Judicial Watch) control condemn
me? This now having chilling effect ability speak freely. (Declaration
59.
public institution, not for the sake rooting out corruption, but the interest
weakening basic constitutional protections and invading privacy.
60.
Release the information will foster anger, fear and demoralization within the
None the sought communications are the public business. Teachers and
staff MLKMS are not public officials, and they have reasonable expectation
privacy their e-mail, including the privacy needed conduct their duties and
address conditions affecting the safety and well-being the children they serve.
Converting these e-mails into public records serves public interest and chills the
exercise speech and association and deters the vital public and civic functions served these communications.
61.
assist individuals who seek threaten and intimidate MLKMS teachers and staff due
their political beliefs and associations and/or perceived political beliefs and associations illegitimate and insufficient justify violating the fundamental rights stake.
62.
Luther King, Jr. Middle School teacher Yvette Felarca.
63.
disclosure which would constitute unwarranted invasion personal privacy. Cal.
The only conceivable justification for Judicial Watch request harass and
Further, Judicial Watch asks BUSD produce [t]he personnel file Martin
The CPRA exempts the disclosure [p]ersonnel, medical, similar files, the
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
Gov Code 6254(c). Therefore, they cannot produced without any overriding
compelling justification; Judicial Watch and BUSD have not provided any.
CLASS ACTION ALLEGATIONS
64.
This action may properly maintained class action pursuant California
Code Civil Procedure 382.
65.
following class the Class all faculty and staff Martin Luther King Middle School MLKMS BUSD.
66.
Plaintiffs bring this action class action behalf themselves and the
Excluded from the Class are the Defendants, and all officers, directors, agents the Defendants.
67. remote.
68.
impracticable.
69.
results discovery.
70.
The likelihood all individual members the Class prosecuting separate claims
The members the Class are numerous that joinder all members would
Plaintiffs reserve the right modify the Class and the class period based the
There are common questions law fact, including:
Judicial Watch request for all communications that mention Felarca,
Antifa, All Means Necessary, and/or BAMN all members
the Class;
Whether Defendant conduct would violate the California Public Records
Act; and
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
Whether Defendant conduct would violate state and federal laws
protecting freedom speech, freedom association, and privacy and the
Educational Employment Relations Act.
71.
Plaintiffs claims are typical the members the Class because Plaintiffs and
all members the Class would potentially injured the same wrongful practices
described this Complaint. Plaintiff claims arise from the same practices and course
conduct that gives rise the claims the Class members, and are based the same
legal theories.
72.
Plaintiffs will fairly and adequately represent the interests the members the
Class. Plaintiffs interests are the same as, and not conflict with, those the other
members the Classes.
73.
class action superior other available methods for the fair and efficient adjudication
this lawsuit, because individual litigation the claims all members the Class
economically unfeasible and procedurally impracticable. The likelihood individual
members the Class prosecuting separate claims remote and, even every Class
member could afford individual litigation, the court system would unduly burdened
individual litigation such cases. Individualized litigation would also present the
potential for varying, inconsistent, contradictory judgments and would magnify the
delay and expense all parties and the court system resulting from multiple trials
the same factual issues. Plaintiffs know difficulty encountered the
management this action that would preclude its maintenance class action, and
certification the Class proper.
Questions law fact common the members the Class predominate, and
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
74.
Relief concerning Plaintiffs rights under the laws herein alleged and with respect the Classes would proper the additional ground that Defendants have acted
refused act grounds generally applicable the Classes, thereby making appropriate
final injunctive relief corresponding declaratory relief with regard members each
Class whole.
COUNT ONE: Violation the California Public Records Act
(Cal. Gov Code 6250, seq.)
75.
Plaintiffs reallege each and every preceding paragraph this Complaint
fully set forth here.
76. qualify public record that must disclosed under the California Public
Records Act CPRA writing must contain information relating the conduct
the public business. Cal. Gov Code 6252(e).
77.
MLKMS faculty and staff work e-mails that mention Felarca, Antifa, All Means
Necessary, and/or BAMN and for Felarca personnel file are expansive, broad, and
not related the public business.
78.
exempted prohibited pursuant federal state law. Cal. Gov Code 6254(k).
79.
faculty and staff that mention Felarca, Antifa, All Means Necessary, and/or
BAMN prohibited the Federal and State Constitutions, which protect freedom
speech and association and the right privacy. They also violate the Educational
Requestor Judicial Watch requests BUSD for all communications from
The CPRA also exempts from disclosure [r]ecords, the disclosure which
Defendant BUSD directive make public all communications among MLKMS
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
Employment Relations Act EERA which protects education employees right
engage concerted activity for their mutual protection.
80.
disclosure which would constitute unwarranted invasion personal privacy. Cal.
Gov Code 6254(c).
81. both federal and state legislation, Detroit Edison Co. NLRB, 440 U.S. 301, 319, fn. (1979). individual personnel file contains vast amounts personal data,
including where was born, the names his parents, where has lived from time
time, his high school other school records, results examinations, evaluations his
work performance. Department the Air Force Rose, 425 U.S. 352, 269 (1976).
Access personnel files drastically limited only supervisory personnel directly
involved with the individual. Id.
82.
file into public record that would override the CPRA prohibition disclosures that
violate federal and state law CPRA strong presumption nondisclosure personnel
files.
The CPRA exempts from disclosure [p]ersonnel, medical, similar files, the
The right privacy one personnel files has been given forceful recognition
Judicial Watch has provided justification for converting Felarca personnel
COUNT TWO: Violation Freedom Speech and Freedom Association
(First Amendment U.S. Constitution; Article Section California
Constitution, U.S.C. 1983)
83.
Plaintiffs reallege each and every preceding paragraph this Complaint
fully set forth here.
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
84.
The First and Fourteenth Amendments the United States Constitution and
Article Section the California Constitution protect the rights freedom speech
and freedom association.
85.
Effective advocacy both public and private points view, particularly controversial
ones, undeniably enhanced group association, this Court has more than once
recognized remarking upon the close nexus between the freedoms speech and
assembly. National Ass for Advancement Colored People State Alabama, 357
U.S. 449, 460 (1958).
Freedom association fundamental component freedom speech:
86.
must survive exacting scrutiny. The courts have declared: [T]he government must
justify its actions not only when imposes direct limitations associational rights, but
also when governmental action would have the practical effect discouraging the
exercise constitutionally protected political rights ... Such actions have chilling effect
on, and therefore infringe, the exercise fundamental rights. Accordingly, they must
survive exacting scrutiny. Perry Schwarzenegger, 591 F.3d 1147, 1159-60 (9th Cir.
2010)
87. preserve freedom association: Inviolability privacy group association may
many circumstances indispensable preservation freedom association,
particularly where group espouses dissident beliefs. Id. 462.
88.
has made uncontroverted showing that past occasions revelation the identity
Government action that interferes with and discourages speech and association
The right not disclose one political opinions and associations fundamental
This inviolability privacy especially strong, where associated group
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
its rank-and-file members has exposed these members economic reprisal, loss
employment, threat physical coercion, and other manifestations public hostility. Id.
89.
limited the disclosure identities rank-and-file members. Perry, 591 F.3d 1162.
The disclosure views expressed and ideas advocated political party meetings,
statements highly sensitive and political character union membership meetings
could have deterrent effect those protected activities. Id.
90.
government must demonstrate[] interest obtaining the disclosures seeks from
Further, [t]he First Amendment privilege [against disclosure]... has never been the face such violation the right freedom association, the
Plaintiff which sufficient justify the deterrent effect which have concluded these
disclosures may well have... NAACP, 357 U.S. 463. This interest must
compelling. Id. Further, the request must also carefully tailored avoid
unnecessary interference with protected activities. Perry, 591 F.3d 1161.
91.
the organization BAMN. The Plaintiffs have faced flood harassment and threats
themselves MLKMS during the past year from right-wing trolls who seek target
Felarca, anti-fascist organizations, and any employee MLKMS who would support the
same.
92.
Felarca, Antifa, All Means Necessary, BAMN has chilling effect
Plaintiffs speech, association, and participation concerted activities for their mutual
benefit.
Felarca has faced political witch-hunt from BUSD for her political activities with
BUSD request for Plaintiffs release all communications that mention
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
93.
BUSD and Judicial Watch have provided interest for their request, let alone
compelling one.
COUNT THREE: Violation Right Privacy
(Fourth Amendment U.S. Constitution; Article Section California
Constitution, U.S.C. 1983)
94.
Plaintiffs reallege each and every preceding paragraph this Complaint
fully set forth here.
95.
The Fourth Amendment the United States Constitution and Article Section the California Constitution protect the right privacy.
96.
Teachers and staff MLKMS have reasonable expectation privacy their
mails not being released public records, particularly those e-mails which they
discuss confidential matters related their students, their students families, ensure
high quality educational environment and functioning school community the face
right-wing intimidation and bullying. Teachers and staff MLKMS are not public
officials and not possess any decision-making authority that lessens their reasonable
expectation privacy. See New York Times Co. Sullivan, 376 U.S. 254, 270 (1964).
97. amount redacting names, email addresses, etc. would protect individual
Plaintiffs from the right-wing trolls who have been determined identify MLKMS
teachers and staff for harassment and bullying well the entire school.
98.
Employees have privacy interest their personnel files. The right privacy
one personnel files has been given forceful recognition both federal and state
legislation, Detroit Edison Co. NLRB, 440 U.S. 301, 319, fn. (1979).
individual personnel file contains vast amounts personal data, including where
was born, the names his parents, where has lived from time time, his high school
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page other school records, results examinations, evaluations his work performance.
Department the Air Force Rose, 425 U.S. 352, 269 (1976). Access personnel files drastically limited only supervisory personnel directly involved with the
individual. Id.
99.
disclosure which would constitute unwarranted invasion personal privacy. Cal.
Gov Code 6254(c).
100.
file into public record that would override the CPRA strong presumption
The CPRA exempts from disclosure [p]ersonnel, medical, similar files, the
Judicial Watch has provided justification for converting Felarca personnel
nondisclosure CPRA prohibition disclosures that violate federal and state law.
COUNT FOUR: Violation Educational Employment Relations Act (EERA)
(California Government Code 3540 seq.)
DEFENDANT B.U.S.D.
101.
Plaintiffs reallege each and every paragraph this Complaint fully set forth
here.
102.
The Educational Employment Relations Act (EERA) governs collective
bargaining between school districts and their employees. Government Code Section
3543(a) states: Public school employees shall have the right form, join, and
participate the activities employee organizations their own choosing for the
purpose representation all matters employer-employee relations Cal. Govt.
Code 3543(a).
103.
Employees have the right use employer computer and email systems for union
organizing and furthering the interests employees. Purple Communications Inc., 361
NLRB No. 126 (2014). (While NLRB decisions are not binding public employers,
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
California Public Employment Relations Board (PERB), which has jurisdiction over the
state public sector, often adopts NLRB rulings, especially where PERB attempts
conform legal principles the realities evolving technology.)
104.
rights, advocates for the rights her union (BFT members and elected delegate state and national BFT conventions and member the BFT union executive board.
She was candidate for BFT president May 2017.
105.
unprecedented request action toward Felarca retaliates against her for her protected
Plaintiff Felarca, addition being advocate for civil rights and immigrant
Defendants extraordinary and unusual compliance with Judicial Watch
activities and sends message other BUSD staff and faculty that engaging protected
activities will expose them retaliation.
106.
without violating the Act long those officials not something out the
ordinary such increasing its monitoring during organizational campaign
focusing its monitoring efforts protected conduct union activists. Id. 15.
107.
Felarca, Antifa, All Means Necessary, and/or BAMN and publish them
public records for right-wing organizations see out the ordinary, overly broad,
spies and deters the ability employees express their political opinions and
engage concerted activities, and therefore interferes with Plaintiffs right engage
concerted activity.
Further, under labor law management officials may observe public union activity
BUSD directive Plaintiffs produce all communications that mention
COUNT FIVE: Illegal Employer Act Direct and Control Employees Political
Activity
(California Labor Code 1101,1102)
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
108.
California Labor Code 1101 states: employer shall make, adopt enforce
any rule, regulation, policy [c]ontrolling directing, tending control direct the
political activities affiliations employees.
109.
attempt coerce influence his employees through means threat discharge loss employment adopt follow refrain from adopting following any
particular course line political action political activity.
110.
association. not only sends the hostile message that those teachers and staff who
California Labor Code 1101 states: employer shall coerce influence
Defendants actions would chill Plaintiffs freedom speech and freedom
engage political activities like Felarca will also targeted, terrorized, and witch-
hunted; sends the message that teachers and staff who engage political activity
share political views any sort that BUSD and/or section the public hostile can
and will targeted and victimized.
111.
activities violation California labor law.
Defendants actions constitute control and directing Plaintiffs political
PRAYER
WHEREFORE, Plaintiff respectfully requests the following relief:
Injunctive relief, including but not limited the following: order enjoining Defendants from releasing public records
MLKMS teachers and staff communications because they
mention Felarca, Antifa, All Means Necessary, and/or
BAMN order enjoining Defendants from demanding and/or requesting
that teachers and staff MLKMS provide BUSD communications released public records because they mention Felarca,
Antifa, All Means Necessary, and/or BAMN and
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page order enjoining Defendants from releasing Felarca personnel
file public record.
Such other and further relief supported the evidence this case and this Court and/or the jury may deem appropriate. Plaintiff Attorneys,
UNITED FOR EQUALITY AND AFFIRMATIVE
ACTION LEGAL DEFENSE FUND (UEAALDF)
BY: _/s/ Ronald Cruz_____________________
Ronald Cruz (State Bar No. 267038)
Shanta Driver (Michigan Bar No. P65007)*
1985 Linden Street
Oakland, California 94607
(510) 875-4463 (Ronald Cruz)
*Pro hac vice application pending
Dated: October 30, 2017
VERIFIED COMPLAINT AND PETITION FOR WRIT MANDATE
CASE NO.
CASE NO. 4:11-cv-05719-YGR
Case 4:17-cv-06282 Document Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-1 Filed 10/30/17 Page
EXHIBIT
Case 4:17-cv-06282 Document 1-1 Filed 10/30/17 Page
Dear King Staff, require your cooperation conducting email search.
BUSD has received Public Records Act (PRA) request for work-related* emails exchanged
among King Middle School employees from Jan. 2016 Sept. 2017 that mention any
these four terms:
Felarca
Antifa All Means Necessary
BAMN
The PRA California state law that says that public records must disclosed upon request.
This includes work-related* writing public employee, including emails. (See below for
definition work-related. know you are very busy, appreciate your prompt attention this important matter. would like offer King staff choice for complying with this PRA request: You could conduct the search your BUSD emails yourself, The District can conduct the search BUSD emails from the central server. order comply with the PRA, need have the search completed Thursday,
November 2nd order have time compile the emails and sift through them determine
which are responsive, that is, which are required for disclosure and which are exempt under
the law.
IMPORTANT: The law forbids public employee from deleting any responsive emails once
PRA request has been received. you prefer conduct the search yourself, please send email pra@berkeley.net state
this preference later than October You will have until November 2nd complete the
search yourself. You can find detailed instructions for doing email search below. not hear from you before October 27, after stating your preference yourself, not receive search results November 2nd, the search will then conducted from the
central district server.
Thank you for your help.
Instructions for Searching Emails:
Step #1. your Gmail Inbox. the search box, which located the right the Berkeley.net logo,
cut and paste these search terms:
(felarca antifa all means necessary bamn) after:2016/01/01
before:2017/9/1 -yvettefelarca@berkeley.net
This will give you list all the emails with the requested search terms during the specified
dates, but will exclude emails that were just to/from Yvette Felarca without the other search
terms.
Case 4:17-cv-06282 Document 1-1 Filed 10/30/17 Page
When you have put the search terms the search box, will look like this:
Step your search yielded any emails, they will now listed with the most recent emails first.
Forward the emails the pra @berkeley.net email address. (You can forward them one
time, you can copy and paste them into one document send that address.) You NOT
need forward emails that are:
Not work-related (see below for definition).
Sent someone who not King employee (the PRA request asks for emails
between and among King faculty/staff after searching you find you not have any emails that match the search terms, please send statement pra@berkeley.net that you have searched your emails and found none that are
responsive this request. know that responding these requests can quite burdensome for all involved.
Nevertheless, must comply with the law, and are under deadline so, need
your prompt response. Again, the deadline November you have any questions, you may contact BUSD Public Information Officer Charles Burress,
510-644-6320 charlesburress@berkeley.net take our obligation comply with the law very seriously. The district legal and financial
well-being depend full compliance with the California Public Records Act. Thank you for your
understanding and cooperation.
Sincerely,
Donald Evans
Superintendent
*What Work-Related Message? you not sure which emails are work-related, the California Supreme Court has defined
public record writing that must relate some substantive way the conduct the
public business.
For further guidance determining which emails are work-related, please see the attached
handout, This Public Record? provided law firm that assists the District with Public
Record Act requests. you remain unsure about whether particular email work-related, please send the
pra@berkeley.net email address, and feel free indicate that you are unsure whether
qualifies not. some cases, may need consult with District lawyers determine
whether email needs disclosed.
Case 4:17-cv-06282 Document 1-2 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-2 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-2 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-2 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-2 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-3 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-3 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-4 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-4 Filed 10/30/17 Page
Case 4:17-cv-06282 Document 1-5 Filed 10/30/17 Page
October 29th, 2018
Declaration Mark Airgood: Special Education teacher Edna Brewer Middle School Oakland, and the Secretary the
Oakland Education Association (OEA). have been OEA site-Representative Edna Brewer for the
past years. civil rights organizer with the Coalition Defend Affirmative Action, Integration,
and Immigrant Rights and Fight for Equality for Any Means Necessary (BAMN) and successfully ran
for OEA Treasurer the Equal Opportunity Now/BAMN slate. also alternate OEA delegate
the California Teachers Association, and OEA delegate the National Education Association
Representative Assembly, where have run the EON/BAMN for NEA President and Executive Board number occasions. believe that the request for information under the California Public Records Act the calls for emails
that reference Yvette Felarca, BAMN, All Means Necessary, and Antifah should not granted
would entail intrusion into the protected right union association and free speech. know that even emails were redacted, the intrusion the District into personal emails will make extremely
hard for Yvette Felarca continue her union activity and will have chilling effect union solidarity
and unified action general. Anything that curtails the free speech teachers one area invariably
spills out into other areas. this request granted, there will many teachers who support Yvette, but don believe they can
actively express that support publicly without fear becoming the target Trump/alt-right harassment
themselves. Release this information BUSD Administration singles Yvette out and sends
message that none the rights that teachers believe they have privacy, free speech, organize
union, take any action that could set them apart will fact defended respected District
Administration and the courts. Her right participate union activity will compromised. not
believe that Yvette could run effective campaign for union office, those who support her would
afraid campaign for her she know being the target District search BUSD members
email. Redaction certain categories, including union references, does not appease that fear.
Release the emails would have chilling effect not only Yvette, but own ability run for
office and organize Oakland and nationally. The EON/BAMN caucus national teachers caucus
that organizes unite the fight teachers with that students and community members for public
education, for special education, and for civil rights. Our ability carry this through nationwide would hindered the climate fear that release information based targeted teacher and union/civil
rights activist Ms. Felarca and series political search terms that all teachers are search through
their email and turn over. The infringement the free speech teachers would make impossible
teacher union activists rights free speech, union organizing inside their union local, school district
and their cities.
Oakland teachers are watching for the outcome this case; will clearly national test for the right privacy, association, and academic freedom. this information gets handed-over, many teachers
will not participate protected action the same extent the currently do, out fear that could
lead retaliation and any the protections that have historically thought had are not
counted given the attacks basic democratic rights being pushed President Trump and his
supporters. know that Oakland teachers will more reluctant union rep protected activity
Case 4:17-cv-06282 Document 1-5 Filed 10/30/17 Page